Top Calif. lawyer hammers EPA rule rollback

Source: Sean Reilly, E&E News reporter • Posted: Tuesday, October 9, 2018

Toxic emissions could soar in California as a result of a Trump administration repeal of a decades-old hazardous air pollution policy, the state’s top attorney argues in new legal documents.

California Attorney General Xavier Becerra (D) warned a federal appeals court last week that the rollback of the Clinton-era “once in, always in” policy may cause industrial releases of hazardous air pollutants to “more than double,” jumping by as much as 935 tons per year under a worst-case scenario.

Becerra — one of the Trump administration’s leading legal foes — made the argument in a brief filed last week with the U.S. Court of Appeals for the District of Columbia Circuit. Becerra also said EPA’s January decision to scrap the policy violated the Administrative Procedure Act by failing to give the public a chance to weigh in first.

Similar arguments came from a coalition of environmental groups that includes the Natural Resources Defense Council and California Communities Against Toxics.

The administration’s decision “dramatically alters the compliance requirements for thousands of industrial facilities across the country, and increases the public’s exposure to hazardous air pollutants,” lawyers for that coalition wrote in a separate brief, also submitted last week.

While EPA air chief Bill Wehrum contends that the “once in, always in” approach ran contrary to the “plain language” of the Clean Air Act, the statute “does not even permit EPA’s new interpretation, let alone require it,” the environmentalists said.

The filings mark the opening salvo in a legal battle likely to last well into next year, if not longer. Becerra’s office and the environmental groups had filed suit this spring, a few months after Wehrum ended the 1995 policy in a memo released with no advance notice (Greenwire, Jan. 26). EPA’s reply is due to the court shortly before Christmas.

The policy had applied to auto manufacturing plants, paper mills and other “major” industrial pollution sources covered by maximum achievable control technology (MACT) standards because they annually release 10 tons of a single air toxic or 25 tons of any combination of such hazardous pollutants. Before January, the stringent MACT pollution control standards had remained in place even if a particular plant’s toxic releases fell below those thresholds.

But critics, including senior congressional Republicans, said the policy acted as a disincentive for major polluters to reduce emissions. Wehrum, who worked as an industry lawyer before returning to EPA’s air office last November, predicted that ending it would reduce regulatory burdens on businesses “while continuing to ensure stringent and effective controls on hazardous air pollutants.”

In the January memo, he also signaled that EPA would “soon” take public comment on a proposed rule to reflect the new reading. The agency has yet to do so. Wehrum recently told the Clean Air Act Advisory Committee that the planned rulemaking should now advance sometime this fall. During his previous stint as acting head of the air office from 2005 to 2007, a bid to rescind the “once in, always in” framework was blocked by Congress.

EPA’s air toxics regulations date back to the 1990 Clean Air Act amendments. In that law, Congress ordered the agency to curb emissions of mercury, arsenic and almost 190 other hazardous pollutants from major sources through what became the MACT standards. The agency took a more lenient approach, however, to smaller “area sources.”

In their brief, the environmental groups last week described those area source standards as “far weaker” than the MACT thresholds, adding that in some cases EPA set no standards at all. Rollback of the “once in, always in” policy means that many “formerly major sources” can increase their releases of toxic pollutants “right up to the major source thresholds” of 10 tons and 25 tons, respectively, the brief added.

Brian Clerico, an air pollution specialist with the California Air Resources Board, fleshed out the state’s argument.

In California, there are at least 42 industrial facilities with emissions below the thresholds that require the MACT pollution control standards, Clerico said in the declaration, which was attached to the state’s brief. Those sources can now ask local regulators to drop those requirements from their permits, thus leading to the potential jump of up to 935 tons in annual emissions, Clerico wrote. “Moreover, certain air toxics, such as mercury or dioxins, are exceptionally toxic even in low amounts,” he added. Accordingly, “small increases may have disproportionately high harms on the surrounding communities.”

While California has its own generally stricter regulations for hazardous pollutants, the state still relies on EPA standards for more than 100 categories of pollution sources, Becerra’s office said in the brief. “Therefore, the distinction between major and area sources is important to California as federal standards are currently a significant control of air toxics in the state,” the brief said.